Omark-CCI, Inc.

National Labor Relations Board - Board Decisions

Jan 17, 1974

208 N.L.R.B. 469 (N.L.R.B. 1974)

OMARK-CCI, INC.
Omark -CCI, Inc . sand Teamsters Union Local No. 551,
International Brotherhood of Teamsters , Chauf-
feurs, Warehousemen & Helpers of America,
Independent . Case 19-CA-6034
January 17. 1974
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBLRS
FANNING AND PENELLO
On August 1, 1973, Administrative Law Judge
Jerrold H. Shapiro issued the attached Decision in
this proceeding. Thereafter, Respondent filed excep-
tions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and brief
and has decided i.o affirm the rulings, findings, and
conclusions of the Administrative Law Judge and to
adopt his recommended Order with the modifica-
tions set forth below.
1. In excepting to the 8(a)(1) findings character-
ized by the Administrative Law Judge as "addition-
al" to those specifically alleged in the complaint,
Respondent asserts, inter alia, that the Administra-
tive Law Judge violated the "ground rules" he
established at the outset of the hearing when he
denied General Counsel's motion to amend the
complaint.' We find no merit in this claim. The
record shows that the General Counsel's motion to
amend and the Administrative Law Judge's ruling
thereon related to alleged acts of supervisors other
than those named in the complaint; that all of the
violations found involve acts committed by supervi-
sors expressly named in the complaint; and that the
so-called "additional" violations involve conduct
closely related to, if not in actuality falling within,
the described unfair labor practices attributed to said
supervisors by the complaint's allegations of unlaw-
ful interrogation and threats. Moreover, all the
violations found ware fully litigated.
2. We also disagree with the Administrative Law
Judge's finding that Respondent violated Section
8(a)(1) and (3) of the Act when, in May 1973, it made
i The Respondent has excepted to certain credibility findings made by
the Administrative Law Judge It is the Board's established policy not to
overrule an Administrative Law Judge's resolutions with respect to
credibility unless the clear preponderance of all of the relevant evidence
convinces us that the resolutions are incorrect . Standard Dry Wall Products,
Inc, 91 NLRB 544, enfd 188 F 2d 362 (C A. 3, 1951) We have carefully
examined the record and find no basis for reversing his findings.
Absent exceptions , we adopt the Administrative Law Judge 's dismissal
of that part of the 8 (a)(3) allegations of the complaint as was litigated on the
theory that Gau was constructively discharged on August 24, 1973.
469
certain changes in Gau's job duties shortly after Gau
commenced her open and prominent activity on
behalf of the Union. The record shows that because
of a suspicion-albeit unproved-that Gau, whose
duties theretofore gave her free access to company
records, was providing material from such records to
the Union for use in the organizational campaign,
management assigned to another that part of Gau's
job duties which involved the maintenance of
personnel records and the handling of management's
mail. There was no evidence, and indeed no claim,
that the reassignment of these duties had any effect
on Gau's pay, that it imposed any more onerous
work upon her, or that it in any way restricted either
the access to employees which she had previously
enjoyed or any opportunities to exercise her legiti-
mate organizational rights. Absent such evidence, we
do not have the kind of situation which would
warrant finding that changes in the job duties of
employees identified with a union amount to
unlawful restraint or discrimination within the
meaning of Section 8(a)(1) and (3) of the Act.
3. We agree with the Administrative Law Judge
that Respondent's refusal to rehire Gau on August
24, 1972, was prompted by her union activity and
therefore was violative of Section 8(a)(3) and (1) of
the Act.2 On that date, after Supervisor Keller told
Chief Engineer Hsu that Gau had quit, Hsu called
Gau and told her that his secretary was on vacation
until after Labor Day. Gau apologized to Hsu for
inconveniencing him and told him that she would
return to work the next workday, Monday, and
would stay until his secretary returned and "then if
things weren't any better, then, I was going to give
him my two weeks notice .... " Hsu agreed to this
agreement, but later that evening called to tell her
not to return to work because General Manager
Arnold had seen her termination slip and "it was too
late to do anything about it." Contrary to our
dissenting colleague, the above-credited testimony of
Gau does not warrant the finding that Gau's offer to
return to work was limited to the 2-week period
Hsu's secretary would be on vacation.
4. Except in the respects noted above, we sustain
all other of the 8(a)(1) and (3) findings made by the
Administrative Law Judge.
Although agreeing with his colleagues in all other respects . Chairman
Miller would limit the 8(a)(3) findings and the remedy with respect to
Respondent's refusal to reemploy Gau to accord with the evidence that
Gau's offer to return to her Job, and Hsu's acceptance thereof (subsequently
rescinded by him at Plant Manager Arnold's direction) was limited to the 2-
week period during which Hsu 's secretary would be on vacation.
Accordingly , he would terminate any remedial rights that Gau enjoyed by
virtue of this unfair labor practice finding as of the time Hsu 's secretary
returned to herjob.
208 NLRB No. 52
470 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
AMFNDED CONCLUSIONS OF LAW
Modify the Conclusions of Law contained in the
Decision of the Administrative Law Judge as
follows:
1. Substitute the following for paragraph 3
therein :
2. Delete the phrase "or applicants for employ-
ment" from the first line of paragraph 4 therein.
"3. By refusing to rehire Charlene Gau because of
her union activity, the Respondent has engaged in
unfair labor practices within the meaning of Section
8(a)(3) and ( 1) of the Act."
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended , the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge, as
modified below , and hereby orders that Respondent,
Omark-CCI, Inc., Lewiston , Idaho, its officers,
agents, successors , and assigns , shall take the action
set forth in the said recommended Order as so
modified.
1. Delete the phrase "or by changing employees'
job duties" from paragraph 1(a) of the recommended
Order.
2. Substitute the attached notice for the notice
attached to the Decision of the Administrative Law
Judge.
APPENDIX
N01ICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELAIIONS BOARD
An Agency of the United States Government
After a trial at which all sides had the chance to give
evidence , the National Labor Relations Board found
that we , Omark -CCI, Inc ., violated the National
Labor Relations Act, and ordered us to post this
notice and to keep our word about what we say in
this notice.
The law gives you the right:
To form , join , or help unions
To choose a union to represent you in
bargaining with us
To act together for collective bargaining
or other aid or protection
To refuse to participate in any or all of
these things.
The National Labor Relations Board has ordered us
to promise you
WE WILL NOT refuse to rehire you or otherwise
discriminate against you because you are a
member of, or have supported , Teamsters Union
Local No. 551 , International Brotherhood of
Teamsters , Chauffeurs , Warehousemen & Help-
ers of America , Independent , or any other union.
WE WILL NOT threaten you with economic
reprisals , including discharge , plant closure, or
loss of chance of promotion , if you join or
support the above -named Union . or any other
union.
Wi: WILL Nor threaten that if you select the
above-named Union , or any other union, to
represent you that we will eliminate our existing
practice of allowing you to present your griev-
ances directly to management.
WE WILL NOT create the impression that we are
engaging in the surveillance of your union
activities.
WE WILL . NOT solicit your grievances for the
purpose of ascertaining what improvements in
working conditions could be granted which would
induce you not to seek unionization nor will we
imply that such grievances will be remedied nor
will we expressly tell you we will remedy your
grievances to dissuade you from supporting the
above-named Union , or any other union.
WE WILL NOT ask you to sign a written
statement promising not to support the above-
named Union , or any other labor organization.
WE WILL NOT interrogate any employee or any
applicant for employment about his union sympa-
thies or activities or those of other employees.
WE WILL NOT subject you to lengthy daily
individual meetings because you support the
above-named Union , or any other union.
WE WILL NOT in any other way interfere with,
restrain , or coerce you in exercising the rights
guaranteed to you by the National Labor Rela-
tions Act.
The National Labor Relations Board found we
violated the law by refusing to rehire employee
Charlene Gau : therefore
WE WILL offer to reinstate Charlene Gau to her
former job or. if that job no longer exists, to a
substantially equivalent position without any loss
of seniority or other rights previously enjoyed.
WE WILL reimburse Charlene Gau for any loss
of earnings suffered as the result of our discrimi-
nation with 6-percent interest.
OMARK-CCI, INC.
(Employer)
Dated By
(Representative ) (Title)
This is an official notice and must not be defaced
by anyone.
OMARK-CCI, INC. 471
This notice must remain posted for 60 consecutive
days from the date of posting and must not be
altered, defaced, or covered by any other material.
Any questions concerning this notice or compli-
ance with its provisions may be directed to the
Board's Office, 10th Floor, Republic Building, 1511
Third Avenue Seattle, Washington 98101, Tele-
phone 206-442-4532.
DECISION
STATEMENT OF THE CASE
JERROI.D H. SHAPIRO, Administrative Law Judge: The
hearing in this case held on June 12 and 13, 1973, is based
upon charges filed by the above-named Union on
September 5, 1972, and a complaint issued on April 2,
1973, on behalf of the General Counsel of the National
Labor Relations Board, herein called the Board, by the
Regional Director of the Board, Region 19, alleging that
Omark-CCI, Inc., herein called the Respondent, has
engaged in unfair labor practices within the meaning of
Section 8(a)(1) and (3) of the National Labor Relations
Act, herein called the Act. The Respondent filed an answer
denying the commission of the alleged unfair labor
practices.
Upon the entire record,' from my observation of the
demeanor of the witnesses, and having considered the
postheanng briefs, I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF TIIE RESPONDENI
Omark-CCI, Inc., the Respondent, an Oregon corpora-
tion, operates a plant in Lewiston, Idaho, where it
manufactures small arms cartndges, components, and
related products. In operating this plant the Respondent
annually purchases and causes to be transported and
delivered directly from suppliers located outside the State
of Idaho goods valued in excess of $50,000. The Respon-
dent admits it is an employer engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Teamsters Union Local No. 551, International Brother-
hood of Teamsters, Chauffeurs, Warehousemen & Helpers
of America, Independent, herein called the Union, is a
labor organizatior within the meaning of Section 2(5) of
the Act.
III. THE SErTING AND QUESTIONS PRESENTED
The Union petitioned the Board on May 16, 1972,2 to
conduct a representation election among the Respondent's
production, maintenance, and shipping employees at the
Lewiston, Idaho, plant. An election was conducted on June
15 which the Union lost. The Union filed objections to
Respondent's alleged preelection conduct which it later
withdrew. The Board on August 8 certified that the Union
had lost the election. Respondent is opposed to the
unionization of its plant and openly expressed this
opposition to its employees in campaigning against the
Union's effort to win the June 15 representation election.
The employee who initiated the Union's organizational
campaign and was the leading union adherent was
Charlene Gau. General Counsel alleges that Gau was
asked to sign a paper repudiating the Union, threatened
with reprisals because of her union activity, questioned
about her own and other employees' union sympathies,
made the subject of harassment and other disagreeable
treatment because of her union activity, and that this
unlawful course of conduct engaged in by Respondent was
unlawful and caused Gau to quit her employment on
August 24. This termination, the General Counsel alleges,
constitutes a constructive discharge in violation of Section
8(a)(3). The complaint also alleges that Respondent
violated Section 8(a)(3) by refusing to reinstate Gau.
Respondent admits Gau quit work on August 24 but
denies her termination was caused by its alleged unlawful
conduct or that Respondent has unlawfully refused to
reinstate Gau.
In addition, the General Counsel in this proceeding
alleges, in substance, that the Respondent in violation of
Section 8(a)(1) of the Act before and after the representa-
tion election restrained and coerced employees in the
exercise of their right to support the Union by interrogat-
ing employees about their own and other employees' union
activities and sympathies, by threatening employees with
reprisals if they supported the Union, and by soliciting
employees' grievances to discourage them from supporting
the Union. Respondent denies it engaged in this conduct
and affirmatively alleges that the major portion of this
alleged misconduct, paragraphs 7 through 9 and 11(a) of
the complaint, should be dismissed on the following
grounds: (1) The alleged misconduct was not alleged in the
unfair labor practice charge filed by the Union; (2) the
Board's Regional Director before issuing the complaint in
this case did not conduct an investigation, did not in other
words give Respondent the opportunity to present its
version of certain of the alleged acts of misconduct; and (3)
this misconduct was the subject of the Board's investiga-
tion of the Union's objections filed in the representation
case and withdrawn by the Union.
As to the first contention, the Union filed charges
alleging that the Respondent discharged nine named
employees and constructively discharged Charlene Gau in
violation of Section 8(a)(1), (3), and (4). The General
Counsel refused to issue a complaint as to the nine
discharges but did issue the instant complaint. All of the
conduct alleged in both the charge and the complaint
relates to the Respondent's alleged antiunion campaign.
The Union's charge did not specifically refer to the
instances of independent violations of Section 8(a)(1) set
out in the complaint. The charge, however, did allege to be
unlawful the above and other acts." It is settled that this
general language, which is uniformly included in Board
charges, is entirely adequate to support complaint allega-
1 The transcript of the record is hereby corrected in accordance with the General Counsel.
unopposed motions to correct transcript filed by the Respondent and the 2 Unless otherwise specified, all dates herein refer to 1972.
472 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tions, and ultimately unfair labor practice findings , that are
broader than the specific allegations of the charge, where
as in the instant case there is a legally sufficient
relationship between the acts specifically alleged in the
charge and those discovered through investigation.
N. L. R. B. v. Kohler Company, 220 F.2d 3, 6-7 (C.A. 7);
N.L.R.B. v. Central Power & Light Company, 425 F.2d
1318, 1320-21 (C.A. 5, 1970). For this reason I reject the
Respondent 's first affirmative defense . I also reject its
second affirmative defense for the reason that neither the
Act nor the Board 's Rules and Regulations require that the
General Counsel in connection with each alleged unfair
labor practice secure Respondent 's version of the facts
before issuing a complaint , nor in this case does there
appear to have been an abuse of the discretionary power
vested in the General Counsel and /or the Regional
Director by the Board to conduct an investigation. With
respect to the Respondent 's third affirmative defense, I am
of the opinion that the Union 's or Regional Director's
conduct in connection with the Union 's objections in the
representation case is not res judicata, nor does it stop the
General Counsel from litigating similar matters in this
proceeding, especially since no hearing was held on the
Union 's objections which were withdrawn only after an
administrative investigation . See Amalgamated Clothing
Workers of America, AFL-CIO v. N.L.R.B. (Sagamore
Shirt Company), 365 F.2d 898, 904-905 (C.A.D.C., 1966);
Leonard Niederriter Company, Inc., 130 NLRB 113, fn. 2 at
115.
IV. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Alleged Interference, Restraint, and
Coercion
1. The conduct attributed to Foreman Lavern
Walker
Metal Parts Production Foreman Lavern Walker, a
statutory supervisor, spoke to machinists Jim Knox and
Richard Santos in their work area on or about June 1.
Walker asked for the reasons they supported the Union,
and asked if there were other proumon employees
employed in the machine shop. Knox and Santos replied
there were a number of such employees and voiced the
grievances which had caused them (Knox and Santos) to
support the Union. Walker proposed that the two employ-
ees meet with the manufacturing manager Adalbert
Krampen and that he, Walker, would arrange such a
meeting . The offer was declined, at which point, Walker
stated that after the representation'election the Respondent
would improve working conditions, that the Respondent
realized that things were not right "with the set up" in the
machine shop and would see that things got better
3 The foregoing is based on a composite of the testimony of Knox and
Santos who impressed me as reliable and honest witnesses Walker recalled
one conversation about the Union with three machinists , including Knox
and Santos , but testified he had no independent recollection of what was
said , that he just remembered talking to the three employees. Walker did
not impress me as an honest witness . His bearing and manner of testifying
indicated to me that his poor memory was not caused by the passage of time
but by a desire to hide the truth
declaring that "after the last election [Respondent] had
given a raise." 3
I find that Walker's inquiry on about June i directed to
employees Knox and Santos about their reasons for
supporting the Union was calculated to force them to
reveal their attitude toward the Union and as such
constituted unlawful interrogation in violation of Section
8(a)(1) of the Act. Also, violative of Section 8(a)(1) was
Walker's further questioning of Knox and Santos about the
union sympathies of the other employees in the metal shop.
In concluding that the above-described conduct constitutes
improper interrogation, I have considered the fact that
there is no evidence of any valid justification for this
conduct, and that it took place in the context of the
Respondent's hostility toward the Union and without any
assurance against reprisal. I also find that Walker in his
conversation with Knox and Santos unlawfully solicited
their grievances and promised them benefits. Walker,
briefly stated, asked them to express the grievances which
had led them to support the Union and upon hearing their
grievances promised better working conditions after the
representation election. There is no evidence that Respon-
dent supervision prior to the Union's organizational
campaign had solicited employees' grievances. Based on
the foregoing, I find that the solicitation of the employees'
grievances by Walker who in effect promised that such
grievances would be remedied violated Section 8(a)(I) of
the Act. Swift Produce, Inc., 203 NLRB No. 60.
The employee who initiated the Union's campaign and
its principle supporter was Charlene Gau. Another employ-
ee who actively supported the Union was Michael Farris.
On or about June 1 outside the metal parts building,
Foreman Walker spoke to Gau about the Union. Walker
asked Gau whether she was "involved with Michael Farris
and the Union" and specifically asked for the reasons Gau
supported the Union. Gau explained why she supported
the Union whereupon, Walker warned that she had "better
watch out because [she ] was being watched" and told Gau
that the Respondent's production manager Kenneth
Reaves said she had taken some papers from the plant.
This accusation angered Gau. She denied it and terminated
the conversation. During the course of the conversation
Walker asked Gau for the names of other employees who
supported the Union. Gau replied that she could not speak
for the other employees.4
I find that on or about June 1, Walker unlawfully
interrogated Charlene Gau about her union activities and
sympathies and about the union activities and sympathies
of other employees and that by engaging in this conduct
the Respondent violated Section 8(a)(1) of the Act. I
further find that by telling Gau she "better watch out
because [she] was being watched" the Respondent,
through Walker, created the impression in the eyes of Gau
that it was keeping her union activity under surveillance,
4 The foregoing is based on the testimony of Gau who in testifying about
this conversation impressed me as an honest witness Walker, at first,
testified he had a conversation with Gau on the subject of the Union but
denied the above remarks attributed to him by Gau Later, however, on
cross-examination he testified that the Union was not discussed during this
conversation Walker's demeanor as I have previously mentioned was
generally that of an incredible witness. I have rejected in its entirety his
version of the Gau -Walker conversation
OMARK-CCI, INC
and that by engaging in this conduct the Respondent
likewise violated Section 8(a)(l).5 In the context the
warning was given this was the only meaning that Gau
could reasonably give to it.6
2. The conduct attributed to Foreman Robert
Thompson
About I week before the representation election of June
15, Assembly Foreman Robert Thompson, a statutory
supervisor, spoke to employee Marjorie Correll about the
Union as it related to the Respondent's "open door policy"
and to carpenter Max Bums. The "open door policy," a
policy well known to the employees, allows an employee to
carry his grievances all the way up the Respondent's
supervisory hierarchy if he does not receive satisfaction
from his immediate supervisor. Max Burns is an independ-
ent contractor employed by the Respondent, pursuant to a
contract, who performs carpentry work. Thompson during
his conversation with employee Correll stated that if
Correll and the other employees succeeded in getting the
Union into the plant, "that the company would no longer
have an open-door policy", and Max Burns "was going to
be without a job." Correll asked what Thompson meant by
inferring that Correll was one of the employees supporting
the Union. Thompson answered, he understood that when
Correll had been employed by another employer she had
helped to organize for a union so he assumed she was
assisting the Union during its current campaign at
Respondent's plant. Correll replied that her union senti-
ments were secret.?
I find that Thompson's statement regarding the "open
door policy" was an unambiguous threat that the Respon-
dent would eliminate this policy if the employees succeed-
ed in getting the Union into the plant. I can not reasonably
interpret the clear language used by Thompson as a
prediction of what the Union would demand in regard to a
contractual grievance procedure. He simply did not say
that nor did he use language which could be reasonably so
construed. In these circumstances and in the context of the
Respondent's union animus and its other unfair labor
practices I find on or about June 7 by threatening to do
away with the Respondent's existing grievance policy if the
Union got into the plant, that the Respondent violated
Section 8(a)(1) of the Act. See Jacob Wiesel d/b/a Saticoy
Meat Packing Co., 182 NLRB 713, 714-715. I also find that
Thompson's statement which implied that employee
Correll supported the Union, by its nature was calculated
to force Correll to reveal whether in fact she supported the
Union, and thereby constituted unlawful interrogation in
violation of Section 8(a)(1), as did Thompson's further
5 In so finding, I realize this conduct was not specifically alleged in the
complaint It took place, however, in the course of other events which were
alleged as unfair labor practices and Is closely related to such alleged unfair
labor practices Also, Respondent did not object to its receipt, had full
opportunity to cross-examine and fully litigate, and did litigate the issue.
Under these circumsts,nces I have ruled upon this conduct even though it is
not specifically alleged as an unfair labor practice See, e g, Monroe Feed
Store, 112 NLRB 1336, 1337
6 There is no evidence or contention that Gau ever removed from the
plant without permission company books, records, or papers nor is there
any contention or evidence that Respondent had a basis for believing she
had engaged in or would engage in this type of conduct.
7 The foregoing is based on the testimony of Correll. In bearing and
473
statement that he assumed Correll was assisting the Union
in its organizational campaign. I note that this interroga-
tion was without justification, without any assurances
against reprisal and took place in the context of the
Company's hostility toward the Union and its other unfair
labor practices. I do not, however, believe that Thompson's
threat that if the employees succeeded in organizing a
Union that Max Burns "was going to be without a job"
constitutes a threat within the meaning of Section 8(a)(1).
Burns was not an employee of Respondent, he was an
independent contractor. In these circumstances, the evi-
dence is not sufficient to establish that by making this
statement that Thompson was impliedly threatening to
discharge Correll or other employees if they supported the
Union.
In June, shortly after the representation election of June
15. Foreman Thompson spoke to employee JoAnn Hosley
about the Union in the presence of Supervisor Louis
Peters. The conversation took place in the office shared by
Thompson and Peters where Hosley was waiting for a
work assignment. Thompson told Hosley that any employ-
ee who voted for the Union was "his enemy" and that if
the Union succeeded the Respondent would close down
the plant or just move the plant to a different location.
Hosley said she did not believe the Company would ever
close or move the plant. Also, Thompson told Hosley
about some bad experiences he had with unions and stated
it was not a good idea to have a union.8 Based on the
foregoing, I find that in June the Respondent, through
Thompson, violated Section 8(a)(1) of the Act by threaten-
ing employee Hosley with economic reprisals if she
supported the Union. Implicit in Thompson's statement
that any employee that voted for the Union was his enemy
was a threat of reprisal. Also, I find that the Respondent,
in violation of Section 8(a)(1) through Thompson, threat-
ened employee Hosley that the Respondent would close its
plant if the employees supported the Union.
3. The conduct attributed to Production Manager
Kenneth Reaves
One of the employees who actively supported the Union
was Michael Farris who was employed in the quality
assurance department. One day, between May 15 and 19,
the Respondent's Production Manager Kenneth Reaves
directed Farris to bring control charts to Reaves' office at
which time he asked Farris to stay and talk about "what
was going on in [the quality assurance] department."
Reaves, among other things, asked Farris "what was
getting started out there in the quality assurance depart-
ment about this Union thing," and voiced the opinion,
delivery-demeanor- she impressed me as an honest witness Thompson
was not an impressive witness
s The foregoing is based on the credible testimony of employee Hosley
who was in the employ of Respondent when she testified Hosley's manner
of testifying and her demeanor in general leads me to believe she was a
reliable and honest witness Thompson admitted he spoke to Hosley about
the Union He testified, at first, he had no recollection of what he said but
then vaguely remembered one comment . The memory of Peters was no
better, he had no recollection at all-not even whether he was ever present
when Thompson spoke to Hosley Neither Thompson nor Peters were
impressive witnesses Their loss of memory did not appear to stem from the
passage of time but I received the impression they were not candid
witnesses
474 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
"this is where it is all coming from." Farns replied that
Reaves' own department contained a number of union
sympathizers. Reaves, in turn, stated that he and his
foremen had "taken a survey through their department"
and figured that about 40 percent of the employees
supported the Union, but that he knew that the support for
the Union in Farris' department, the quality assurance
department, was even higher. Reaves asked what Farns
"thought the Union could do for [Respondent]," pointed
out that the employees of a nearby employer had gone
union and it had not worked out and they were now in the
process of deauthorizing the Union. Reaves asked, "what
[the Respondent's employees] were doing getting started
with the Union" stating that the employees would have to
pay dues and the Union would not do anything for them.
During the course of the conversation Reaves told Farns
that their talk was confidential, dust between the two of
them, and warned Farns that if the management found out
Farris was "in on" the Union's organizational attempt, that
Farris' "chances for promotion [with Respondent] will be
almost nil . . . I thought you had a bright future with this
company, but when they find out about this you just stay
where you are."9
I find that Respondent violated Section 8(a)(1) of the Act
on about May 17 by warning employee Michael Farns that
he would not be promoted because of his union activities
and sympathies. I further find that during this same
conversation Reaves told Farris that certain supervisors
had "taken a survey through their department" and
believed 40 percent of the employees supported the Union,
knew that the support for the Union in Farris' department
was even higher and that Reaves knew that Farris was "in
on" the Union's organizational campaign. Plainly, these
statements were calculated to create the impression that
Respondent was keeping the union activity of Farris and
other employees under surveillance and as such violated
Section 8(a)(1) of the Act. 10
4. The conduct attributed to Personnel Assistant
JoAnn Riceci
On August 24 Respondent terminated a number of
employees, one of whom was Gary Farris. Farris had
supported the Union during the preelection campaign.
Following his termination, on August 24, pursuant to
Respondent's normal procedure Farris received an exit
interview from Personnel Assistant JoAnn Riceci, admit-
tedly an agent of Respondent. During the course of this
interview Farris asked that he be considered for rehire.
Farris stressed the fact that he had enjoyed working for
Respondent, stated he liked the people in management and
desired to remain with the Respondent but believed, he
9 The foregoing is based on the testimony of Michael Farris who testified
in a forthright manner and whose demeanor while testifying was impressive
Reaves admitted there was a meeting between them in his office but that
Farris did most of the talking Reaves had no memory of what he , Reaves,
said to Farris , testifying " it was mostly trivial " Reaves was an unimpressive
witness and I received the impression his memory was not dimmed by time
but by the knowledge that the truth would hurt Respondent I have rejected
his testimony wherever it conflicts with Farris'
10 In so finding , I realize this conduct was not specifically alleged in the
complaint It took place, however, in the course of other events which were
alleged as unfair labor practices and is closely related to such alleged unfair
said, that a number of the personnel in management held it
against him because he had supported the Union. Riceci,
at this point, asked if he was as pleased about the
company, his job and management as he stated, then "why
had he supported the Union." Farris gave his reasons for
supporting the Union which included a belief that the
Respondent had unfairly selected for layoff a friend of his.
Riceci asked whether Farris felt the Union could get his
friend's job back. Farris replied the friend did not want to
return to the company.ii
The record is clear and I find that at the time of his
postdischarge interview when Riceci asked him "why he
supported the Union" that Gary Farris was seeking
reemployment with the Respondent. I further find that the
question by its very nature compelled Farris to indicate
whether he had repented or still supported the Union. An
extremely awkward position for Farns who knew that the
Respondent was adamantly opposed to the Union, yet he
wanted to be considered for reemployment by Respondent.
Riceci's reason for asking the question-why if Farris liked
the company so much had he supported the Union-in my
opinion was not justified by the circumstances. Not only
does questioning an employment applicant about his union
sympathies have the same coercive tendency as other types
of employer interrogation about union attitudes or activity
but in addition, the delicate situation occupied by an
employee seeking employment or reemployment renders
such questioning inherently even more coercive. This is
especially true where, as here, Farris knew that Respon-
dent was hostile toward the Union and Ricecf gave no
assurances to Farris that Respondent would not hold it
against him if he still supported the Union. Under the
circumstances, I find that Respondent's interrogation of
Gary Farris on August 24 about his union sympathies was
violative of Section 8(a)(l) of the Act. New England
Bituminous Terminal Corporation, 200 NLRB No. 7.
5. The conduct attributed to Chief Engineer Y. S.
Hsu
The two employees most active in their support of the
Union were Charlene Gau and Michael Farris both of
whom worked in the quality assurance department. The
supervisor in charge of this department was the Company's
Chief Engineer Y. S. Hsu. The record establishes that the
Respondent's management believed that a large number of
the employees in Hsu's quality assurance department had
supported the Union in the representation election. To
determine why the employees in this department felt they
needed the Union Hsu, so he testified, in August called
employees Gau and Michael Farris into his office. Hsu
spoke to Farris once and to Gau on several occasions. The
labor practices . Also, Respondent did not object to its receipt , had full
opportunity to cross-examine and fully litigate , and did litigate the issue
Under these circumstances I have ruled upon this conduct even though it is
not specifically alleged as an unfair labor practice See , eg, Monroe Feed
Store, 112 NLRB 1336, 1337
It The foregoing is based on the testimony of Ricecf which is
corroborated by her written report of the interview , a record kept during the
normal course of business As will be noted later, I have discredited Ricecf s
testimony on other matters and have credited Gary Farris' On this matter,
however, of the two witnesses, Riceci when she testified impressed me as
being the more reliable
OMARK-CCI, INC.
General Counsel claims that during these conversations
Hsu made statements and engaged in conduct which
violated Section 8(a)(1) of the Act. I will first discuss his
conversation with Farris and then the several alleged
conversations with Gau.
a. Hsu's meeting with Michael Farris
On August 31 Hsu called Michael Farris to his office
where he spoke with him for about 2 hours. Hsu told Farris
that he wanted to talk to him since he had talked to the
other employees in the department previously. On the
subject of the Union, Hsu asked Farris why he had
supported the Union and told him that two other plants
operated by the Respondent had gone umon and were in
bad financial condition. Hsu asked, "how the other
employees in the department felt about the Union, which
ones were strongly for [the Union]," and wanted to know
the employees' reasons for supporting the Union. Hsu
explained to Farris that if he, Hsu, knew the reasons the
employees supported the Union then he would talk to them
and straighten their grievances out and the employees
would not have to go to the Union again. Also, Hsu stated
that the plant was controlled by himself along with Plant
Controller Mincher, Manufacturing Manager Krampen,
and General Manager Arnold and that the last three
named individuals assumed that Farris was the leader of
the Union's organizational campaign and wanted him
fired. Hsu stated he did not believe that Farris was the
leader and had defended him and saved his job. Hsu asked
Farris, "to keep [his] nose clean for Hsu's sake from now
on," and predicted that with a little time everything would
be forgotten. Farris denied he was the person who had
initially contacted the Union. Hsu, using "an old chinese
proverb" told Farris, in substance , it did not matter but
what did matter was the fact that management knew he
was involved with the Union and believed he was the
leader.
The foregoing is based on the testimony of Michael
Farris who impressed me as an honest witness. He testified
in a candid forthright manner . Hsu's testimony in general
was vague, ambiguous, and, on a number of points,
evasive. Regarding his August 31 conversation with Farris
he testified he had no memory of what was said, but
generally denied asking Farris whether he supported the
Union or which employees supported the Union or the
reasons other employees supported the Union. Hsu was in
general an unimpressive witness and I have rejected his
testimony where it is not corroborated by other credible
testimony.
I find that on August 31, Hsu unlawfully interrogated
Michael Farris in violation of Section 8(a)(1) by asking
why he supported the Union. I further find that by
indicating that management believed Farris was the
Union's leader that Hsu placed Farris in a position of
having to reveal the extent of his union sympathies and
activities which constitutes unlawful interrogation, and as
such violated Section 8(a)(1) of the Act. Likewise, unlawful
12 In so finding, I realize this conduct was not specifically alleged in the
complaint. It took place, however, in the course of other events which were
alleged as unfair labor practices and is closely related to such alleged unfair
labor practices Also, Respondent did not object to its receipt, had full
475
in violation of Section 8(a)(1) was Hsu's interrogation of
Farris about the union sympathies of Farris' fellow
employees. I further find that Respondent violated Section
8(a)(1) when Hsu told Farris that management wanted to
fire him because of his umon sympathies and activities and
that his continued employment was conditioned on his
keeping his "nose clean" of the Union. Also, unlawful is
Hsu's statement that if he knew the grievances which
caused the employees to support the Union he would
straighten them out so the employees would not have to go
to the Union again. The law is settled that such a promise
to improve employees' terms and conditions of employ-
ment for the purpose of dissuading them to support the
Union violates Section 8(a)(1).12 N.LR.B. v. Exchange
Parts Company, 375 U.S. 405 (1964).
b. Hsu's meetings with Charlene Gau
Charlene Gau, the employee who initiated the Union's
organizational campaign, it appears was the most active
adherent for the Union. The record establishes that
Respondent's management knew or suspected Gau's role
as the leading union activist, and was concerned over the
large number of union sympathizers in Gau's department,
the quality assurance department, over which Chief
Engineer Hsu was in charge. On August 16, Hsu in the
afternoon called Gau into his office where, in the presence
of his secretary Carol Schwartz, spoke with Gau, as Hsu
testified, to determine what grievances had caused Gau
and the other employees in the department to support the
Union. Schwartz took notes of what was said.
At the start of the meeting Hsu asked Gau to write out in
her own hand, "why [she] supported the Union, who was
involved and that [she] was sorry, that [she] would not do
it again," and asked Gau to sign this statement which I will
hereafter call the "Union confession." Hsu also told Gau
that he wanted to discuss the reasons why she supported
the Union because he believed that if they ironed out the
problems that perhaps the Union would not get started
again. In this regard, Hsu asked Gau to tell him the
different reasons of the other employees for supporting the
Union. The reasons which led Gau to support the Union,
Hsu told her, would be taken by him to a management
meeting so that management could work out the compa-
ny's problems. Gau explained the grievances which had
caused the employees to support the Union. This meeting
lasted about 1-1/2 hours.
On Thursday, August 17, Hsu, in his office, asked Gau if
she had considered preparing and signing the "Union
confession" and Gau said she would not sign such a
document. Since the Company worked 4 10-hour days a
week, Monday through Thursday, the next workday was
Monday, August 21. On this date Hsu, in his office, again
asked Gau if over the weekend she had thought about
preparing and signing the "Union confession ." Gau again
refused to sign such a document and told Hsu to stop
asking her to do so. Whereupon, Hsu started to talk about
Michael Farris, the other employee in the department who
opportunity to cross-examine and fully litigate and did litigate the issue
Under these circumstances I have ruled upon this conduct even though it is
not specifically alleged as an unfair labor practice . See, e.g , Monroe Feed
Store, 112 NLRB 1336, 1337.
476 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
had actively supported the Union, stating, "they were
going to fire Mike Farris because he was involved in the
Union, because he had been so involved in the union
activities and they didn't feel they owed him anything."
The above-described words and conduct attributed to
Hsu is based on the testimony of Gau. Gau also testified
that during August she had other meetings with Hsu in his
office. Hsu admits to dust two meetings with Gau in
August, the August 16 meeting and a meeting the following
week on either August 21 or 22. His version of these
meetings in crucial respects differs from Gau's as does the
testimony of Schwartz concerning the meeting of August
16. Based on the entire record, but particularly my
observation of the witnesses, I credit Gau and reject the
testimony of Hsu and Schwartz with respect to what was
said at the meeting of August 16. Likewise, and for the
same reasons, I reject the testimony of Hsu regarding the
other conversations attributed to him by Gau in August. I
credit the testimony of Gau with respect to the number of
such conversations, the manner in which the conversations
arose, the number of times she met with Hsu, the length of
these conversations, and the content of the conversations.
Gau impressed me with her sincerity. Her testimony was
given with conviction. There was nothing in her version of
the meetings or her demeanor to suggest that her version of
these events was fabricated. On the other hand, Hsu and
Schwartz in demeanor impressed me as being insincere
witnesses . Also, Hsu's testimony generally was vague and
evasive and on many important matters internally incon-
sistent . English, I realize, is not Hsu's native language, but
I can not ascribe Hsu's ambiguity and evasiveness to this. I
would be naive to ignore the fact that Hsu has used the
English language for a number of years, has lived in the
United, States continuously since at least 1965, at which
time he received his master's degree from Oregon State
University. I received the distinct impression Hsu was not
trying to tell the truth as he remembered it, rather his
demeanor and manner of testifying was that of someone
determined to obfuscate the truth. This is a harsh
judgment, and I am aware that I may be in error, but my
considered judgment based on my observation of the
witnesses as well as on the content of their testimony is that
Gau tried to tell the truth and Hsu and Schwartz did not.
In reaching this conclusion, I have carefully considered the
fact that prehearing statements given by Gau differ from
her testimony on details such as dates of meetings, and the
length of meetings. I do not feel, however, that this
seriously affects her overall credibility, but rather am
convinced it exhibits no more confusion as to details than
is not uncommon in the stories of entirely honest and
reliable witnesses.
Based on the foregoing, I find that in violation of Section
8(a)(1) of the Act, Respondent on August 16, 17, and 21,
through Hsu, unlawfully interrogated Gau by asking her to
explain why she supported the Union, to tell what other
employees had supported the Union, to disavow her
support for the Union, and to promise not to support the
13 The complaint does not allege and the General Counsel does not urge
that in the circumstances of this case this was a too-broad limitation on the
right of an off-duty employee to enter the plant to solicit for the Union In
dispute , however, is whether Hsu asked if Gau knew anything about union
cards being passed around I have not resolved this factual dispute. For,
Union in the future . I further find that Respondent
violated Section 8(a)(I) of the Act on August 21 when Hsu
threatened Gau with discharge if she did not withdraw her
support from the Union . Hsu's warning that Respondent
was going to fire Michael Farris because of his union
sympathies given immediately after Gau had refused to
sign the " Union confession" could have been construed as
nothing but a threat that Gau would suffer the same fate if
she did not withdraw her support from the Union.
B. Respondent 's Conduct Toward Charlene Gau and
the Termination of Gau's Employment
1. Gau's union activities
Charlene Gau began work for the Respondent in August
1969 and was employed as a clerical in the quality
assurance department. On about May 10 or l1 she visited
the Union's office, discussed the possibility of the Union
representing the company's employees and after consider-
ing the matter began to solicit employees to sign cards
which authorized the Union to represent them. Gau, who
initiated the Union's organizational campaign, was assisted
in distributing the Union cards by three other employees,
one of whom was Michael Farris. On Friday, May 12,
Gau, employed on the first shift, with Michael Farris
entered the plant during the second shift and solicited
several employees on this shift to sign Union cards. By
Monday, May 15, it was common knowledge among
management that the Union was conducting an organiza-
tional campaign among the employees and that Gau was
leading union adherent actively organizing for the Union.
Thus, Ron Keller, a supervisor in the quality assurance
department, credibly testified that on May 15 Production
Manager Reaves told him that Gau and Mike Farris had
passed out union cards on the second shift the previous
week and further testified that on the same day-May
15-at a meeting attended by all of the Respondent's
supervisors that the second shift supervisor Hendricks
notified the Respondent's Production Manager Krampen
that Gau and Mike Farris had been passing out union
cards on his shift. Also, according to Mike Kelly, the
ranking supervisor in the quality assurance department, the
head of the department, Hsu, on May 15, told Kelly that
Production Manager Krampen had told Hsu that Gau and
Mike Farris had been observed on the second shift passing
out union cards. On the same day Hsu, in the presence of
Kelly, spoke to Gau about being in the plant during the
second shift the previous Friday. He instructed her not to
come into the plant during her off-duty hours unless she
had received permission from her immediate supervisor,
Kelly. i3
2. The change of Gau's job duties
On or about May 17, almost simultaneous with its
knowledge that Gau was behind the Union's effort to
organize the plant, Hsu met with the two supervisors of the
even if the question were asked , and even if it constitutes unlawful
interrogation, the recommended order in this decision already encompasses
such unlawful conduct and the disputed interrogation is not relevant to the
disposition of other issues in this case
OMARK-CCI, INC.
quality assurance department, Kelly and Keller. Hsu told
them it was difficult for him to believe that two of his
employees, Gau and Mike Farris, were involved in the
union activity. He told Keller and Kelly to restrict the
movements of Gau so she would not go to the Company's
main office where records were kept, explaining to them
that he and the Company's general manager, Arnold,
believed that Gad was removing records from the main
office which the Union was duplicating for use in its
election campaign. Hsu also told the two supervisors to
route any of their typing or reproduction or other work to
Carol Schwartz, Hsu's secretary, rather than to Gau.14
At about the same time that Hsu was talking to the two
department supervisors about Gau's duties, Hsu's secretary,
Schwartz, came to Gau and without explanation took
from Gau's possession all of the personnel records of the
employees in the quality assurance department which had
been previously kept by Gau. Schwartz' explanation to
Gau was that she was acting pursuant to Hsu's instruction.
One or two days later Hsu directed Gau not to continue to
pick up the department's mail stating that he wanted
everything routed directly through him and that, "they had
other things they wanted [Gaul to do." Gau no longer
picked up the mail nor did she continue to maintain the
department's personnel records. These duties were trans-
ferred to Hsu's secretary, Schwartz. Gau was directed to
spend more time helping department supervisors Keller
and Kelly.
In explaining the change in Gau's duties, the Respondent
offered two witnesses, Schwartz and Kelly. They did not
controvert Gau's testimony as to the nature of the changes
in her duties or the fact that the changes were made
immediately after the Respondent learned about Gau's
union sympathies and activities. Their testimony was not
helpful on the question of the Respondent's motivation for
changing Gau's duties. The individual who made such
changes. Chief Engineer Hsu, was not questioned on this
point by the Respondent. Hsu's failure to testify about the
motive for changing Gau's duties leads me to believe that
his testimony would have been unfavorable to Respondent.
The little testimony given by him on this matter lends
support to this inference. On direct examination Hsu
testified that Gau once told him someone had falsely
accused her of stealing company documents for the
Union.ia Hsu denied anyone from management had ever
accused Gau of engaging in this conduct. Then, on cross-
examination Hsu reluctantly admitted that at a meeting of
management it was brought out that Gau was a union
adherent at which time the suspicion was voiced by
members of management that Gau had stolen or passed
some information to the Union. Hsu, so he testified, was
instructed at this time to limit Gau's work authority so she
would not have access to company records she might give
to the Union. There is not, however, one bit of evidence
that Gau ever removed any company paper or record from
the plant for the use of the Union or passed along any
confidential information to the Union or that the Respon-
14 The above remarks made by Hsu to Keller and Kelly are based on the
credible and undenied testimony of Keller
i' As previously found, Gau in fact on or about June 1 had been told by
Foreman Walker that she had better watch out because she was being
watched and that Production Manager Reaves had told him Gau had taken
477
dent had any basis for believing that she was either guilty
of such conduct or would engage in this type of conduct.
Based on the foregoing, and the whole record, I find that
Respondent was hostile toward Gau because of her union
activities, immediately after it learned of these activities
changed her job duties, that such a change was made
because of Gau's union activities and because of Respon-
dent's union animus, and further find that Respondent had
no legitimate business justification for engaging in this
conduct. Accordingly, I find that Respondent on or about
May 17 violated Section 8(a)(1) and (3) of the Act by
changing Gau's job duties because of her union sympathies
and activities. Of course, it is no defense for Respondent to
urge that the change in duties did not make Gau's job any
less desirable. See Associated Mills, Inc., 190 NLRB 113,
and cases cited In. 19.
3. Hsu's daily meetings with Gau
Gau testified that commencing on August 2 and
continuing until she quit work on August 24, Hsu initiated
meetings with her almost daily. Hsu denies this and
testified he spoke to Gau during this period at length only
on August 16, as described previously, and one other time,
either August 21 or 22. As previously stated in this
Decision, I was impressed by Gau and not impressed by
Hsu and have credited Gau's testimony in its entirety
regarding her meetings with Hsu during August. In this
regard, I also note that Gau's testimony that she frequently
was summoned to Hsu's office for lengthy meetings was
circumstantially corroborated by the credible and unde-
nied testimony of Supervisor Ron Keller and the Farris
brothers. Mike Farris testified that almost daily in August
he received instructions from Hsu to leave a note for Gau
to go to Hsu's office when she arrived at work, that
because of the frequency and length of Gau's visits with
Hsu she was not able to complete her normal work
assignments, and that Gau during this period spent about
10 percent of her time in the quality assurance department
whereas normally she spent 95 percent of her time in the
department. Gary Farris testified that the Company's
safety procedure required that he telephone the quality
assurance department each hour, daily. The person
responsible for answering the phone was Gau and it was
Gau who normally received Farris' hourly calls. During the
2 week period just before her termination, Gau, as Farris
testified, answered his phone calls only once or twice
during the day and some days would not answer any of the
calls. Supervisor Keller testified that although he was not
in a position to keep a close watch on the amount of time
Gau spent in the department that during her last 2 weeks
of employment, he did observe that she was absent from
her desk "quite often." is
I shall now briefly describe Hsu's meetings with Gau and
the pertinent events surrounding these meetings.
On August 2 Hsu met with Gau in his office where they
talked for about 2 hours. Hsu stated he was getting
some papers from the plant
16 The testimony of Carol Schwartz. the secretary of Hsu, that she did
not remember or recall Gau in Hsu's office on August 3. 14, 15, or 17, is not
credible, she did not impress me as a trustworthy witness
478 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
"pressure" from "higher up" because he had two secretar-
ies and he had to do something with one of them. Hsu
talked to Gau about furthering her education so she could
get a betterjob with the Company, told her he believed she
had the ability to be an engineer, and, as Gau testified, said
"that my union activities wouldn't have anything to do
with it and he was really pulling hard for me, that some
people wanted him to fire me and he was doing his best to
keep me there." 17 Hsu suggested that Gau take additional
training in math. He volunteered to tutor her, and lent her
an algebra book.18
On Thursday, August 3, Hsu spoke to Gau in his office
for an undisclosed period of time. He asked whether she
had looked over the algebra book. Gau stated she believed
she could master the subject matter and expressed a desire
to take extra training if Hsu was willing to spend the time
with her. Hsu asked if Gau thought she was capable of
performing Michael Farris' fob, he was a technician in the
department. Gau stated that with proper training she
would be able to do the job.
At this time Respondent's employees including Gau
worked a 4-day week, Monday through Thursday. Gau
was on vacation from Monday, August 7, through
Thursday, August 10, and returned to work Monday,
August 14.
On Monday, August 14, and Tuesday, August 15, when
Gau arnved at work she found notes directing her to go to
Hsu's office. Gau went to the office and met with Hsu for
about 2 hours each day. Briefly stated, the following took
place at these meetings. Hsu asked about Gau's vacation
and whether Gau had read any part of the algebra book,
and if she thought she could master the math. Hsu stated
that he wanted to reorganize the quality assurance
department and told Gau about an engineer the Company
planned to transfer in from another one of its plants. Hsu
talked about the jobs performed by the various employees
in the department, questioned Gau about certain jobs and
talked with Gau in general about the jobs, among other
things, telling her that the company planned, in effect, to
eliminate Gary Farris'job. Gau told Hsu she thought Gary
Farris was an excellent employee.
On Wednesday, August 16, the Respondent's General
Manager Arnold at the afternoon coffeebreak called a
meeting of the employees at which time he announced that
the Union had withdrawn its objection to the representa-
tion election conducted by the Board. Following this
announcement, as described earlier, Hsu summoned Gau
to his office for the purpose of finding out why she and the
other employees had supported the Union. Hsu, as I have
found earlier, requested that Gau prepare and sign the
"Union confession." In addition, Hsu asked Gau to give
the reasons that she and the other employees supported the
Union, explaining that he wanted to discuss these reasons
because if the company ironed out the problems that
perhaps the Union would not get started again. Hsu stated
it In the context in which it occurred , I find , this was a none too subtle
threat that top management wanted to discharge Gau because of her union
sympathies and, as such , violated Section 8(a)(I) of the Act . Plainly, the
threat of discharge was not connected with the fact that Hsu had two "so
called" secretaries , one of whom was surplus For, Hsu at all times material
employed two "so called" secretaries , Schwartz, his personal secretary, and
Gau Schwartz was hired in April to replace another lady who had been
that he would relay Gau' s remarks to a management
meeting so management could work out the problems. Gau
told Hsu about the grievances which had caused the
employees to support the Union. The conversation lasted
about 1-1 /2 hours.
On Thursday, Augtist 17, the last workday of the week,
Hsu initiated a conversation with Gau in his office at
which time, as previously found, Hsu again asked her to
prepare and sign the "Union confession" and said he did
not understand why Michael Farris would support the
Union after the company had done so much for him. Gau
refused to prepare and sign such a confession and
explained to Hsu why, in her opinion, Mike Farris had
supported the Union, a subject which they then discussed.
This meeting lasted about 2 hours.
On Monday, August 21, Hsu summoned Gau into his
office at which time he spoke to her for about 4 hours. Hsu,
as previously found, again asked her to prepare and sign
the "Union confession ." When Gau adamantly refused to
do this, Hsu warned that the Respondent intended to
discharge Michael Farris because of his union activities.
Gau defended Farris explaining in detail why she believed
he was a good employee who should not be discharged.
Hsu, after listening to Gau's comments , stated he would
fire Ron Keller rather than Mike Farris. They talked about
this. Gau, not desiring to see anyone fired, pointed out that
Keller had two children to support and was a hard worker.
On Tuesday, August 22, when Gau arrived at work she
again found a note on her desk to visit Hsu in his office
and except for the lunch break she stayed there the entire
day talking with Hsu. They continued their discussion
about the possible discharge of employees including
Michael Farris and Ron Keller, and they again discussed
the jobs of each employee that worked in the department.
Hsu stated that he wanted to improve and reorganize the
quality assurance department and wanted Gau's help in
doing this, and that Gau had "really hurt" him when she
became involved with the Union. Hsu stated that he felt
the Union had disrupted all of his plans for the depart-
ment . Gau credibly testified that because Hsu had told her
he wanted her help in reorganizing the department that she
felt a responsibility about whether Keller or Michael Farris
would be discharged.
On Wednesday, August 23, as will be described below,
Gau did not go to work and on Thursday, August 24, she
notified Hsu that she was terminating her employment.
To sum up, during the 8 working days immediately prior
to Gau 's termination , Hsu virtually each day summoned
her to his office and on each occasion spoke to her at
length, once keeping her in the office all day. He did this, I
find, because Gau was a leading union adherent, the
employee who initiated the Union's campaign, and Hsu
desired to discourage Gau from continuing to support the
Hsu's secretary There is nothing in the record to suggest that there was
insufficient work for both Gau and Schwartz nor is there any evidence that
any one was pressuring Hsu to discharge either Schwartz or Gau because
one of them was surplus.
is 1 reject Hsu's testimony that in April or May he gave Gau his algebra
book
OMARK-CCI, INC. 479
Union and to learn from Gau the reasons Gau and other
employees had thrown their support to the Union.19
Wholly apart from the frequency, the length, and Hsu's
motive for holding these meetings, at several of the
meetings Hsu, as I have previously found, engaged in
certain conduct which violated Section 8(a)(1). At more
than one meeting he interrogated Gau about her union
sympathy and activity and the union sympathy and
activity of other employees. During three of the meetings
he asked Gau to prepare and sign a statement indicating
she disavowed the Union and promising not to support the
Union. When Gau adamantly refused to sign such a
statement Hsu threatened her with discharge if she
continued to support the Union. Also, at another meeting
to discourage Gau from continuing to support the Union
Hsu informed her that management wanted to discharge
her because of her union activities but that he, Hsu, was
defending her. To be realistic, it is in this context that the
series of meetings between Hsu and Gau must be viewed.
When viewed in this context, I am of the opinion that
subjecting Gau to approximately 8 lengthy consecutive
daily meetings with the boss in the boss' office because
Gau was a union adherent who the boss wanted to
discourage from supporting the Union was a form of
harassment which reasonably tended to restrain and coerce
Gau in the exercise of her right to support the Union.
Accordingly, by engaging in this conduct the Respondent
violated Section 8(a)(1) of the Act.
4. The events surrounding the termination of
Charlene Gau
On Tuesday, August 22, after Gau's all day meeting with
Hsu, she went home upset and talked with her husband,
James Gau, until the early hours of August 23. James Gau
credibly testified his wife told him, "she was tired of being
hauled into the office many times by Hsu . . . she was
tired of him asking her to sign a confession. She was just all
shook up . . . she couldn't calm down." The next day,
August 23, Gau stayed home from work. She phoned the
plant to notify them of her absence. Mike Farris who took
her call and relayed the message to management credibly
19 Hsu gave an explanation for one meeting with Gau, the August 16
meeting This was called, he testified, because he knew Gau was a union
adherent and wanted to determine why Gau and the other employees who
were union sympathizers supported the Union I am of the opinion,
however, that this along with a desire to discourage Gau, the leading union
adherent, from continuing to support the Union was Hsu's primary motive
for meeting with Gau daily during the month of August For, Hsu gave no
explanation why he conducted a series of daily meetings over a period of
several consecutive working days with a clerical employee Unexplained is
the failure of Hsu to subject any of the other employees to this unusual
treatment Also, the content of the meetings establish that an important
purpose of the meetings was to dissuade Gau from supporting the Union by
either the use of the carrot (an offer to assist Gau in advancing with the
company) or the stick (threatening to discharge Gau if she continued to
support the Union )
20 The credible testimony of Gau's husband, James Gau, corroborates
her testimony that she went to the plant on August 24 intending to work I
have rejected Ruth Gray's testimony that about 10 a in on August 24 Gau,
on her way into the plant, told Gray she was quitting Gray was vague about
this alleged conversation and in bearing and demeanor she did not impress
me as trustworthy on this matter
I also credit the testimony of James Gau corroborated by his wife's
testimony, that he did not decide to enroll in Peninsula College until Friday,
August 25, after Gau had been told by Hsu that she should not report for
testified that Gau told him she was going to be absent from
work because she had been in Hsu's office all day long and
had been upset about it, had not slept so she was going to
stay home to catch up on her rest.
On Thursday, August 24, Gau credibly testified that she
went to the plant late, about 10 a.m., with the intention of
going to work.20 When she arrived in the quality assurance
department she found a note on her desk which told her to
"go see" Hsu. Gau was about to do this when, as Gau
testified, "[Mike Farris] said they had fired Gary Farris
and I knew there was nothing that I could do. They had
fired Gary." Thinking that Mike was joking, Gau phoned
Gary Farris who was working in another area of the plant
and in response to her inquiry Farris told her that it was his
understanding that he was going to be terminated that day.
Gau testified that she reacted to this information as
follows: "Gary confirmed it [referring to his termination].
He came down and we talked about it for a while, like,
wow, I thought there was nothing I could do now. So I got
my NOPA [referring to a personnel form entitled "notice
of personnel action" which among other things is used as a
termination form] and I filled it out. I looked for Hsu to
give it to." Gau was not able to locate Hsu, but while
looking for him she met Supervisor Keller on his way to
lunch. Gau, who was either crying or getting ready to cry,
told Keller she was quitting and testified, "[Keller and 11
talked and I really got upset because he [Keller] had fired
Gary Farris." Gau told Keller Hsu wanted her to sign the
"Union confession" and that everybody was getting fired.
Keller unsuccessfully tried to talk Gau out of quitting until
at least she spoke to her immediate supervisor, Kelly, who
was not at work that day. Gau left Keller and took her
NOPA (termination slip) to Personnel Assistant JoAnn
Riceci and left the plant for home.21 It was about
noontime.
In the meantime after Gau notified him that she had
decided to quit, Supervisor Keller went to Hsu's office and
told him Gau had quit. Hsu asked "what for?" Keller
ignored the question and asked "isn't that what Al Arnold
[Respondent's general manager] wanted?" Hsu replied,
"yes, if we could get Mike Farris to quit now, we would be
work Monday, on which date he mailed the application to the college in
this regard I have carefully considered the fact that prior to August 24 Gau
had indicated to various people that her husband intended to leave the area
to attend college The Gaus, husband and wife, however, each impressed me
as honest witnesses on this point
2i Riceci testified that when Gau handed her the quit slip she told her
she was quitting because "my husband is going to school and I'm going with
him" and at the same time gave Riceci Hsu's math book to return to Hsu I
do not believe her on either point When she testified on the subject of
Gait's termination Riceci's manner of testifying and her demeanor was not
that of an honest witness In addition, this testimony is not corroborated by
Hsu and does not ring true Riceci testified she immediately told Hsu that
Gau had quit because her husband was going to school Hsu does not
corroborate her on this crucial matter Hsu claims he was so upset when he
learned Gau had quit that he was not able to remember what Riceci said to
him Regarding the return of the math book, Riceci admits that the book
was not immediately returned by her to Hsu but she inadvertently left it on
her filing cabinet The record shows, and Riceci acknowledges, she had to
have been blind to have missed the book I find she was not blind but, that
Gau, as she testified, did not return this hook until September 5 when she
returned to the plant for her paycheck Also, contrary to the testimony of
Riceci that she returned the book to Hsu, Hsu testified that another
employee returned the book to him, not Riceci
480 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
rid of Mike Farris." Hsu again asked why Gau had quit
and Keller told him that she probably had heard about
Gary Farris being terminated.22
After he spoke to Keller about 12:45 p.m., Hsu
telephoned Gau at her home. When he spoke to Gau he
sounded upset. He asked why she had "done this to him,"
stated that she had "played right into their hands," because
by quitting she had done exactly what "they" wanted her
to do. Hsu during the course of the conversation stated
that Gary Farris had not been discharged. Hsu asked Gau
what he, Hsu, was going to do because his secretary,
Schwartz, was on vacation until after Labor Day. Gau
apologized for inconveniencing Hsu by quitting and told
him, "maybe [you ] shouldn't have told me the things [you ]
did. I just couldn't handle it." Gau, however, told Hsu she
would return to work the next workday, Monday, August
28, and would stay at least until Carol Schwartz returned
and that by that time if things did not get better she would
probably give her 2 weeks' notice, train a replacement, and
quit. Hsu agreed to this arrangement and asked Gau to call
him back so it would look better. Gau hung up, called Hsu
back through the plant's switchboard, at which time they
reaffirmed what had been agreed upon previously, namely
Gau would return to work Monday.23
Gau, at the hearing, testified that "one of the reasons I
was going back to work was because . . . he had said that
Gary [Farris] was not going to be fired", and further
credibly testified that even though she learned later that
day that Farris had in fact been discharged that she still
intended to return to work on Monday, August 28,
explaining, "at least until [Schwartz] got back from
vacation. Like, [Hsu] did not have anybody . . . I did feel
real bad about leaving there with no one to do his letter
writing or anything."
Gau, however, did not as agreed return to work. For,
that evening Hsu phoned Gau at home. Her husband,
James Gau, took the call and handed over the phone to
Gau. Hsu told her that "he was very upset" but that she
was not to return to work on Monday. Hsu explained that
the General Manager Arnold had seen her termination slip
and that it was too late to do anything about it. Hsu
apologized for the way things had worked out, expressed a
desire to be close friends with Gau and advised her, in
effect, not to tell anyone that he had previously called Gau
and arranged for her to return to work.24
22 The Hsu-Keller conversation described above is based on the credible
testimony of Keller who impressed me as an honest witness when he
testified on this matter I do not believe Hsu's denial, for as was the case
with his testimony in general he did not impress me as being candid when
he testified about this conversation
23 The above-described Hsu-Gau telephone conversations are based on
the credible testimony of Gau Hsu first testified "i contacted lGau] by
telephone," then testified he did not recall initiating the call, then
reluctantly admitted he possibly did initiate the phone call Regarding the
conversation Hsu first testified he told Gau that when he needed her he
would call her, then testified he unequivocally told Gau "to come back to
work for two weeks" and then testified he did not ask her to return to work
because she had already resigned As previously indicated, Gau impressed
me as an honest witness , whereas Hsu impressed me as a dishonest witness
5. Discussion and ultimate conclusions regarding
the termination of Gau
a. The "constructive" discharge
The law is settled that an employer is not guilty of a
discriminatory discharge because an employee takes
umbrage at its antiunion actions or attitudes. On the other
hand, when an employee's resignation is the direct and
intended result25 of an employer's unlawful conduct the
Board has regularly found that the employer has "con-
structively discharged" the employee in violation of
Section 8(a)(1) and (3). Generally see, Action Wholesale,
Inc. d/b/a A. L. French Co., 145 NLRB 627, 628 and John
S. Barnes Corporation, 165 NLRB 483, 484.
Guided by the above principles, I am of the opinion that
the evidence does not preponderate in favor of a showing
that Gau was "constructively discharged." In reaching this
conclusion I am motivated by the following factors. The
unfair labor practices directed against Gau did not
constitute the kind of misconduct calculated to cause Gau
to quit. The discriminatory change in herjob duties did not
make the job undesirable or working conditions onerous.
The other acts of misconduct directed against Gau on their
face were designed to either dissuade Gau from continuing
to support the Union or to learn from Gau the attitude of
the other employees about the Union. These unfair labor
practices, in my opinion, were designed merely to thwart
the employees', including Gau's, union activities, and were
not a tactic designed to drive Gau into an involuntary quit.
Nor, apparently did Gau view the situation. Gau did not
complain to Hsu, perpetrator of the misconduct, about the
various acts of misconduct directed against her. Also, on
August 24 after thinking the situation over Gau was
prepared to resume work and only reached a decision to
quit upon learning that the Respondent had discharged
Gary Farns.26 Gau's testimony, which is set out in detail
above, demonstrates the significance to Gau of the news of
Gary Farris' termination, and in my opinion, constitutes an
admission by Gau that but foi Farris' discharge on August
24 she would not have quit her employment. In addition,
the record establishes that although Hsu desired to
discourage Gau from continuing to support the Union, he
desired to retain her as an employee. Thus, when he
learned that Gau had quit, Hsu did not welcome the news
as would be expected if he had been seeking to cause her to
quit, but rather was visibly upset and made a serious effort
to get Gau to return to work. The fact that it appears that
the Company's general manager, Arnold, welcomed the
opportunity to get rid of Gau because of her union
I have rejected Hsu's testimony concerning the August 24 phone
conversations with Gau wherever it conflicts with Gau's
24 This phone conversation is based on the credible testimony of Gau
corroborated by her husband who testified that Hsu did in fact call that
night Hsu testified he did not phone Gau that night I do not believe him
29, Of course , "a man is held to intend the foreseeable consequences of
his conduct" Radio Officers' Union of Commercial Telegraphers Union,
AFL-CIO v NLRB , 347 U S 17 (1954)
26 There is no contention that Gary Farris' termination was not based on
legitimate business considerations The Union, in the charge upon which the
complaint in this proceeding is based , alleged that his termination was
unlawfully motivated The Regional Director dismissed this portion of the
charge , and upon appeal was sustained by the General Counsel
OMARK-CCI, INC. 481
activities does not, in the circumstances of this case, in my
opinion , detract from the conclusion that Hsu did not
engage in a course of conduct designed to cause Gau to
quit . To sum up, I am of the opinion that the evidence fails
to establish that Respondent' s intention was to force Gau's
resignation or that Gau's continued employment was
conditioned upon her abandonment of her union activity
or sympathies. Under these circumstances , I cannot say
that Respondent "caused" Gau to quit, or that her
voluntary quitting was tantamount to a constructive
discharge violative of Section 8(a)(3) of the Act.
b. The refusal to rehire Gau
Even though Gau voluntarily quit on August 24, the
question still remains whether Respondent 's refusal to
reemploy Gau on the same date was discriminatory.
Within 2 hours after she had quit , Gau, in response to
Hsu's plea to come back, agreed to return to work the next
workday. The only reason given by Hsu to Gau when he
later refused to reemploy her was that the Respondent's
general manager , Al Arnold, had seen her termination slip.
Respondent offered no evidence to explain whether in fact
Arnold was the person who overruled Hsu's decision to
reemploy Gau, and , if so, what was his reason . The record
contains no evidence of a company policy or precedent for
refusing to reemploy an employee , like Gau , who quits. In
this regard, it is relevant that the person who decided to
reemploy Gau, Chief Engineer Hsu, is a high -ranking
member of management in complete charge of two
departments with four low level supervisors under his
immediate direction.
On account of his position in the hierarchy of manage-
ment , presumably Hsu is familiar with company policy,
and his decision to reemploy a person normally is not
questioned . This is especially true in the case of an
employee like Gau whose services Hsu obviously needed
and who was an employee with 4 years of company service
who Hsu regarded as a good and intelligent worker.
Against this background , the additional factors surround-
ing the refusal to reemploy Gau take on added signifi-
cance. Gau was known to the Respondent to be one of the
most ardent advocates of the Union . Gau was solicited on
three separate occasions by Respondent to disavow her
support for the Union , and was threatened with discharge
by Respondent if she did not do this. Nevertheless, Gau
informed Respondent she would not repudiate the Union.
On these facts I am satisfied that the record, by a
preponderance of the evidence , establishes that Respon-
dent 's refusal to rehire Gau on August 24, 1972, was
prompted by her union activity , and therefore violated
Section 8 (a)(3) and ( 1) of the Act. See Saxe -Glassman Shoe
Corporation, 97 NLRB 332, 333-334, enfd . on this point
201 F.2d 238, 243 (C.A. 1). (Employee Tremblay.)
CONCLUSIONS OF LAW
Upon the basis of the foregoing findings of fact, and the
entire record , I make the following conclusions of Law:
1. Omark-CCI, Inc., the Respondent , is an employer
engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
2. Teamsters Union Local No. 551, International
Brotherhood of Teamsters , Chauffeurs , Warehousemen &
Helpers of America, Independent , the Union , is a labor
organization within the meaning of Section 2(5) of the Act.
3. By changing the job duties and refusing to rehire
Charlene Gau because of her union activity, the Respon-
dent has engaged in unfair labor practices within the
meaning of Section 8 (a)(3) and (1) of the Act.
4. By interrogating employees or applicants for em-
ployment about their union activity and union sympathies
or those of other employees ; by threatening employees
with economic reprisals including loss of promotion,
discharge and plant closure if they support the Union; by
threatening an employee that if the employees selected the
Union as their bargaining representative they would be
deprived of their present right to speak directly with
management about their individual grievances ; by solicit-
ing grievances or complaints from employees for the
purpose of ascertaining what improvements in working
conditions could be granted which would induce the
employees not to seek unionization and by implying that
such grievances would be remedied ; by promising an
employee that employees ' grievances would be remedied to
dissuade the employees from supporting the Union; by
giving employees the impression that their union activity
was under surveillance ; by asking an employee to sign a
written statement repudiating the Union and promising not
to support the Union ; and by subjecting an employee to
lengthy daily meetings over a period of several consecutive
days with her boss , in his office , because the employee is a
union adherent , the Respondent has engaged in unfair
labor practices within the meaning of Section 8 (a)(1) of the
Act.
5. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
6. The Respondent has not otherwise violated the Act.
THE REMEDY
Having found that Respondent has engaged in unfair
labor practices violative of Section 8(a)(1) and (3) of the
Act, I shall recommend that it cease and desist therefrom
and take certain affirmative action in order to effectuate
the policies of the Act.
Having found that Respondent discnminatonly refused
to rehire Charlene Gau, I shall recommend that the
Respondent offer Charlene Gau immediate and full
reinstatement to her former job , or if said job no longer
exists, to a substantially equivalent position , without
prejudice to Gau's seniority and other rights and privileges
and make Gau whole for any loss of earnings suffered by
reason of such discrimination , by payment of a sum of
money equal to that which normally would have been
earned as wages from August 24, 1972, to the date of said
offer of reinstatement , less net earnings during such period,
with backpay computed on a quarterly basis in the manner
established by the Board in F. W. Woolworth Company, 90
NLRB 289, and with interest thereon as prescribed by the
Board in Isis Plumbing & Heating Co., 138 NLRB 716.
As the unfair labor practices committed by the Respon-
dent were of a character which go to the very heart of the
482 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Act, I shall recommend that it cease and desist therefrom
and to cease and desist from infringing in any other
manner upon the rights of employees guaranteed by
Section 7 of the Act. N L.R.B. v. Entwistle Mfg. Co., 120
F.2d 532, 536 (C.A. 4, 1941).
Upon the basis of the foregoing findings of fact,
conclusions of law, and the entire record, and pursuant to
Section 10(c) of the Act, I hereby issue the following
recommended:
ORDER 27
Respondent, Omark-CCI, Inc., Lewiston, Idaho, its
officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Discouraging membership in Teamsters Union Local
No. 551, International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen & Helpers of America, Independent,
or in any other labor organization, by refusing to rehire
employees or by changing employees' job duties or in any
other manner discriminating against employees in regard
to hire and tenure of employment or any term or condition
of employment.
(b) Interrogating employees and applicants for employ-
ment as to their union activities and sympathies or those of
other employees.
(c) Threatening employees with economic reprisals
including discharge, plant closure, or loss of promotion if
they support the above-named labor organization or any
other labor organization.
(d) Creating the impression of surveillance of the union
activities of its employees.
(e) Threatening employees with the loss of their right to
talk directly with management about their grievances if
they select the Union or any other labor organization as
their bargaining representative.
(f) Soliciting grievances from employees for the purpose
of ascertaining what improvements in working conditions
could be granted which would induce the employees not to
seek unionization and implying that such grievances would
be remedied.
(g) Promising employees that their grievances will be
remedied to dissuade them from supporting the Union.
27 In the event no exceptions are filed as provided by Sec 102 46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions and recommended Order herein shall, as provided in Sec
102 48 of the Rules and Regulations , be adopted by the Board and become
its findings , conclusions , and order, and all objections thereto shall be
deemed waived for all purposes
(h) Asking employees to sign a written statement
repudiating the above-named labor organization or to
promise not to support the above-named labor organiza-
tion or any other labor organization.
(i) Subjecting employees to lengthy daily individual
meetings because the employee is a union adherent.
(j) In any other manner interfering with, restraining, or
coercing employees in the exercise of their rights guaran-
teed under Section 7 of the Act.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:
(a) Offer Charlene Gau immediate and full reinstatement
to her former position or, if this position no longer exists,
to a substantially equivalent position, without prejudice to
seniority or other rights and privileges previously enjoyed,
and make her whole for any loss of earnings suffered by
reasons of the discrimination against her, in the manner set
forth in the section herein entitled "The Remedy."
(b) Preserve and, upon request, make available to the
Board or its agents for examination and copying, all
payroll records, social security payment records, timecards,
personnel records and reports, and all other records
necessary to analyze the amount of backpay due and the
rights of reinstatement under the terms of this Order.
(c) Post at its place of business in Lewiston, Idaho,
copies of the attached notice marked "Appendix." 28
Copies of said notice on forms provided by the Regional
Director for Region 19, after being duly signed by
Respondent's representative, shall be posted by Respon-
dent immediately upon receipt thereof, and be maintained
by it for 60 consecutive days thereafter, in conspicuous
places, including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by
Respondent to insure that said notices are not altered,
defaced, or covered by any other material.
(d) Notify the Regional Director for Region 19, in
writing, within 20 days from the date of this Order. what
steps have been taken to comply herewith.
IT IS ALSO ORDERED that the complaint be dismissed
insofar as it alleges violations of the Act not specifically
found.
28 In the event that the Board 's Order is enforced by a Judgment of a
United States Court of Appeals . the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read " Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board "